Maradana Satyanarayana vs Marisela Annapurnamma
2021 Latest Caselaw 5355 AP

                                                                         MVR,J
                                                              S.A.No.234 of 2014
                                       1

          IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

               HONOURABLE SRI JUSTICE M. VENKATA RAMANA

                       SECOND APPEAL No.234 of 2014
JUDGMENT:

The defendant is the appellant. The respondent was the plaintiff.

2. It is an unfortunate tussle between younger brother and elder sister

on account of certain differences in between them. The respondent laid

the suit for recovery of Rs.6,42,500/- against the appellant stating that he

borrowed Rs.5,00,000/- on 25.03.2007 and executed the suit promissory

note in her favour agreeing to repay the same with interest at 12% per

annum and that he did not repay the same in spite of demands.

3. The substantial defence of the appellant at the trial was one of

denial of execution of the suit promissory note stating that it is a forgery

and further stating that a tampered signature is utilised for the purpose of

preparing the suit promissory note. He also questioned the financial

capacity of the respondent to lend such amount stating that she and her

husband were given to borrowing money and that her husband filed

I.P.No.5 of 2005 on the file of the Court of learned Senior Civil Judge, at

Bobbili, which was dismissed for default later. He also stated that in all,

an extent of Ac.4.97 cents was transferred by her husband in her favour

before filing the afore stated insolvency petition. He also contended that

he got issued a legal notice to the respondent referring to all the above

facts.

4. On the pleadings, the following issues were settled by the trial

Court:

"1. Whether the promissory note dated 25.03.2007 is true, valid and binding on the defendant or not?

2. To what relief?"

MVR,J S.A.No.234 of 2014

5. The parties went to trial, where the respondent examined herself as

P.W.1, P.W.2 being the attestor and P.W.3 being the scribe of the suit

promissory note, while relying on Ex.A1 in support of her contention. The

appellant examined himself as D.W.1 and relied on Ex.B1 to Ex.B5 in

support of his contention. On the material and evidence, learned trial

Judge decreed the suit as prayed rejecting the defence of the appellant.

6. In appeal, the appellant was not successful and the appellate Court

also agreed with the findings of the trial Court leading to confirming its

decree and judgment.

7. These are the circumstances under which this second appeal is

presented by the appellant.

8. This second appeal is admitted on the following substantial questions

of law:

"a. Whether the Court below is justified in exercising the powers under Section 73 of the Indian Evidence Act when the defendant pleading that Ex.A1 is fabricated and forged document.

d. Whether the Courts below are right in arriving a finding that the amount of evidence beyond pleadings is not tenable and admissible under in law in view of Section 11 of the Evidence Act.

e. Whether court below is right in decreeing the suit for recovery of amount in view of the admission made by the plaintiff in her cross-examination as per Section 17 of the Evidence Act."

9. All these substantial questions of law require consideration of the

proof of Ex.A1 suit promissory note, manner of appreciation of the

evidence let in by the parties by both the Courts below and drawing

inferences and conclusions thereon.

MVR,J S.A.No.234 of 2014

10. The decree and judgment of the trial Court on all the issues were

confirmed by the appellate Court and thus the situation now is that there

are concurrent findings on facts. In exercising jurisdiction under Section

100 CPC in deciding this second appeal, this Court is bound to bear its

significant effect.

11. Smt.Nimmagadda Revathi, learned counsel for the respondent in this

context relied on GURUDEV KAUR AND OTHERS v. KAKI AND OTHERS1

referring to observations in Para - 70 therein. It is as follows:

"70. Now, after the 1976 amendment, the scope of Section 100 CPC has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

(iv) Another part of the Section is that the appeal shall be heard only on that question."

(2007) 1 SCC 546 MVR,J S.A.No.234 of 2014

12. Further observations in this context are in paras 71 and 72 of this

ruling and they are:

"71. The fact that, in a series of cases, this Court was compelled to interfere because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.

72.When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law."

13. Ex.A1 is the suit promissory note under which the appellant had

originally borrowed Rs.5,00,000/- in cash on 25.03.2007 from the

respondent agreeing to repay the same with interest at 12% per annum to

the respondent or to her order. P.W.2 is the second attestor and Sri Chinni

Vasudeva Rao is another attestor to it. It is scribed by P.W.3. Though the

evidence on record is that there was exchange of notices in between these

parties prior to institution of the suit, copies of legal notices so issued or

exchanged were not produced at the trial.

14. P.W.1 is the respondent, who deposed in respect of the transaction

covered by Ex.A1 and swearing to the effect that the appellant had

borrowed money as stated in Ex.A1. Cross-examination of P.W.1 on behalf

of the appellant is oriented towards her incapacity to lend such huge

amount including the attempt by her husband in filing an insolvency

petition as set out in his written statement. The factor of financial MVR,J S.A.No.234 of 2014

incapacity of the respondent was considered by both the Courts below

particularly considering the statement elicited from her in cross-

examination on behalf of the appellant. Not only it is stated in the written

statement but also elicited in cross-examination of P.W.1 on behalf of the

appellant that she owned certain extent of land, viz. about 4 to 7 acres

and a house. The most damaging part of cross-examination is on account

of statement elicited from P.W.1 in pooling up resources, to lend such

money to the appellant. P.W.1 stated that she sold 20 to 30 tulas of gold

in a jewellery shop of Manchukonda people at Visakhapatnam in such an

effort. It is the burden of the respondent to establish such fact in the light

of the defence set up by the appellant. Bringing out such statement in

support of her version, on behalf of the appellant, certainly diluted the

nature of this defence.

15. Though the appellant deposed in that respect, in view of admitted

strained relationship in between these two parties, their respective

versions at the trial need examination on a careful footing. The version so

presented by the appellant in this context in the light of such statements

elicited in cross-examination from P.W.1 has lost its effect. Therefore, this

material presented that both the Courts below are right in accepting the

version of the respondent in this respect.

16. Sri A.S.C.Bose, learned counsel for the appellant strenuously

contended that Ex.A1 did not refer to specific place of execution and even

in the plaint, it is not specifically averred except in the paragraph relating

to cause of action that it was executed at Bobbili. In the written

statement, the appellant also stated to this effect. This question has to be

considered in the light of the evidence available on record through P.W.2

and P.W.3. Their testimonies establish that it was executed near Sub-

Registrar's office at Bobbili.

MVR,J S.A.No.234 of 2014

17. In the same context, Sri A.S.C.Bose, learned counsel for the

appellant brought to the notice of this Court that the evidence of P.W.2

and P.W.3 have not corroborated with each other and their statements

elicited in the cross-examination clearly raise an amount of suspicion about

Ex.A1 transaction and to the effect that the appellant did not borrow any

money under Ex.A1 from the respondent.

18. The statements elicited in the cross-examination of P.W.3 are

mainly referred to in this context by learned counsel. P.W.3 stated that he

did not know the attestors or the defendant. He further stated that except

on the date of Ex.A1, he had not known the appellant as well as the

respondent earlier. However, he asserted that he was the scribe of Ex.A1

when suggested on behalf of the appellant contra to it, also indicating the

time when this transaction took place in between 11.30 a.m. and 12.00

noon.

19. P.W.2 at one stage went to the extent of stating in cross-

examination that he never had acquaintance with the appellant prior to

Ex.A1 transaction nor had known his name. However, another statement

elicited in cross-examination from P.W.2 is to the effect that he attested

Ex.A1 at the request of the respondent and the appellant. He had also

known the relationship in between these two parties and had known the

respondent and her husband for long. He also referred to another attestor

to Ex.A1 as a resident of Bobbili.

20. Further statement elicited in cross-examination from P.W.2 on

behalf of the appellant is that on the date of Ex.A1, the appellant came

down to Bobbili from Visakhapatnam and that this transaction took place at

Sub-Registrar's office at Bobbili. Sri A.S.C.Bose, learned counsel for the

appellant in this context further contended that going to Sub-Registrar's

office on a Sunday for any purpose including to purchase stamps is quite MVR,J S.A.No.234 of 2014

artificial and unbelievable. Learned counsel further contended that both

the Courts below did not consider this aspect in right perspective.

21. Reasons are assigned by both the Courts in rejecting the contention

of the appellant in this respect and the manner in which the statements

were elicited during trial from these two witnesses did indicate that they

are supporting the version of the respondent.

22. Thus, when both the Courts below consistently recorded findings,

which are otherwise not perverse nor that they are not based on the

material on record, it is rather difficult to reconsider these matters at this

stage in second appeal. It cannot be stated in these circumstances that

the appellant was not in attendance nor had taken part in Ex.A1

transaction.

23. Attempt was made during trial by the appellant to subject Ex.A1 for

examination by hand-writing experts and he was unsuccessful since two

laboratories to which it was forwarded returned it on the ground that

contemporary signatures are not available for the purpose of comparison of

the signature attributed to the appellant on Ex.A1. No further attempt was

made by the appellant to produce his signatures relating to the period, as

of Ex.A1. Since he is an employee in Municipal Corporation at

Visakhapatnam, it would not have been very difficult for him to secure

such signatures. Silence on the part of the appellant in this regard remains

unexplained.

24. However, at this stage, Sri A.S.C.Bose, learned counsel for the

appellant made a request to remand the matter to the trial Court to enable

to undertake such exercise, which is strongly opposed by learned counsel

for the respondent.

MVR,J S.A.No.234 of 2014

25. When such an attempt was not even made during pendency of

appeal under Section 96 CPC, this request is very difficult to accept.

A matter cannot be remanded to enable a party to the appeal to

strengthen his contention in any manner. Both the Courts below

unnecessarily undertook an exercise to compare the signature attributed to

the appellant in Ex.A1, as if exercising their power under Section 73 of

Indian Evidence Act. Learned trial Judge as well as the learned appellate

Judge did not in any way in their respective judgments introduce

themselves to have proficiency in the science of comparison of hand-

writings to undertake such an exercise. Particularly in the background

when two established laboratories returned Ex.A1 for want of

contemporaneous material, in the process of comparing the signature on

Ex.A1 stated to be of the appellant, such course resorted to by both the

Courts on the face of it, was hazardous. The basis for undertaking such an

exercise apparently is a flaw. Nonetheless, this factor cannot in any

manner strengthen the contention of the appellant and to hold that Ex.A1

is a fabricated and forged document brought out by the respondent against

him.

26. Thus, on consideration of the entire material when the entire case is

resting on appreciation of facts as rightly contended by Smt.Nimmagadda

Revathi, learned counsel for the respondent, it is hard for the Court to

interfere in this second appeal. The reasons assigned by the trial Court,

though on the verge of certain imaginary circumstances and which are not

certainly based on material or evidence on record, the conclusion so

drawn, which was confirmed by the first appellate Court ultimately in

decreeing the suit, cannot be faulted. Therefore, this Court is satisfied

that this is not an instance, where it has to interfere in terms of Section

100 CPC. The substantial questions raised by the appellant are not of such MVR,J S.A.No.234 of 2014

nature, which can as such be stated to attract Section 100 CPC. Therefore,

the second appeal has to be dismissed.

27. In the result, this second appeal is dismissed. Consequently, the

decree and judgment of the appellate Court are confirmed, which in turn

confirmed the decree and judgment of the trial Court. No costs. Interim

orders, if any stand vacated. All pending petitions stand closed.

____________________ M. VENKATA RAMANA, J Dt:20.12.2021 Rns MVR,J S.A.No.234 of 2014

HON'BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.234 OF 2014

Date:20.12.2021

Rns MVR,J S.A.No.234 of 2014